IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ZENITH ENERGY TERMINALS JOLIET HOLDINGS LLC, a Delaware Limited Liability Company, JOLIET BULK, BARGE & RAIL LLC, a Delaware Limited Liability Company,

Plaintiffs,

v.

CENTERPOINT PROPERTIES TRUST, a Maryland Real Estate Investment Trust,

Defendant. )

) ) ) ) ) ) ) ) C.A. No.: N19C

- 10

- 054 EMD CCLD ) ) ) ) )

ORDER DENYING PLAINTIFFS’ MOTION TO ESTABLISH SUMMARY JUDGMENT RULING THAT “FINAL COMPLETION WAS NOT

ACHIEVED” AS LAW OF THE CASE

Th e Court has reviewed Plaintiffs’ Motion to Establish Summary Judgment Ruling that
“Final Completion was not Achieve d ” as Law of the Case ( the “ Motion ”) 1 filed on April 24,
2023, by Plaintiffs Zenith Energy Terminal Joliet Holdings, LLC and Joliet Bulk, Barge & Rail
LLC (together, “Zenith”); and CenterPoint Properties Trust’s Opposition to Plaintiffs’ Motion to

Establish Law of the Case ( the “Response”) 2 filed on May 8, 2023, by Defendant CenterPoint
Properties Trust (“CenterPoint”)

. The Motion seeks relief in relation to the Court’s January 23,

2023 opinion (the “Opinion”) 3 denying both parties’ cross

- motions for summary judgment.

Zenith now asks the C ourt for an order that the Opinion held “final completion was not

achieved” and to make th at purported holding the law of the case. CenterPoint opposes entry of

1 Plaintiffs’ Motion (D.I. 164). 2 Defendant’s Response (D.I. 166). 3 See Opinion (D.I. 158).2

such an order. After reviewing the Opinion, the Motion , and the Response, the Court has

deter mined that cause does not exist to grant the relief sought by Zenith. The Motion is

DENIED

.
The law of the case is a “judicially

- created doctrine that prevents parties from relitigating
issues that previously have been decided.” 4 “Once a matter has been addressed in a procedurally
proper way by a court, it is generally held to be the law of the case and will not be disturbed by
that court unless a compelling reason to do so appears.” 5
The Opinion addressed certain contract ter ms like “reasonable best efforts” and
“reasonably prudent construction manager in the construction industry.” 6 The Court found that
genuine issues of material fact exist regarding whether CenterPoint met these contractual
standards of care. The Court, t herefore, denied summary judgment on the breach of contract
claims. The Court discussed the issue of “final completion” in the Opinion; however, an actual
finding on that issue was not part of the Opinion.
Here, whether final completion was achieved was not central or dispositive to the issues
raised by the parties in their summary judgment briefing. The Court assumed , for purposes of
Civil Rule 56, that final completion was not achieved. The Court did not make such a factual
holding as the issue was no t necessary to the holdings set out in the Opinion. Context is
important. The Court discussed final completion in the context of analyzing whether
CenterPoint used “reasonable best efforts” and acted as a “reasonably prudent construction
manager.” Based on the issues presented, the Court accepted that certain items that were

4 Sofregen Med. Inc. v. Allergan Sales, LLC , 2023 WL 2034584, at *13 (Del. Super. Feb. 3, 2023) (cleaned up) (quoting Zurich Am. Ins. Co. v. Syngenta Crop Prot. LLC , 2022 WL 4091260, at *3 (Del. Super. Aug. 24, 2022)). 5 Preston Hollow Cap. LLC v. Nuveen LLC , 2020 WL 7365808, at *5 (Del. Super. Dec . 15, 2020) (quoting Zirn v. VLI Corp. , 1994 WL 548938, at *2 (Del. Ch. Sept. 23, 1994)).
6 See Opinion at 18

- 26.3

contractually required to achieve “final completion” (as defined by the operative contracts) had
not been completed. A passage from the Opinion demonstrates this:
Therefore, while i t is likely that Final Completion was not achieved, the Court finds that there are genuine issues of material fact regarding whether CenterPoint acted as a “reasonably prudent construction manager” as required by the Construction Management Agreement. 7
The Opinion focuses on “reasonably prudent” and “reasonable best efforts.” The Opinion does
not make an actual finding on whether Final Completion was achieved.
CenterPoint recognizes this. The Response notes that CenterPoint intends to introduce

ev idence at trial (absent from its summary judgment briefing) that the missing items were, in
fact, completed. 8 The issue of “final completion” will be factually presented a t trial . The Court,

a s the fact finder , can analyze the fully developed evidentiary record to determine whether “ final
completion ” was achieved

— if that becomes necessary.

IT IS SO ORDERED.

Dated: May 31, 2023 Wilmington, Delaware 

## / s/ Eric M. Davis Eric M. Davis, Judge

cc: File&ServeXpress

7 Opinion at 26. 8 Defendant’s Response at 5

- 6.